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Sunday, July 15, 2018

Darul Qazas or Sharia Courts: Why both must be Opposed?

By Arshad Alam, New Age Islam

13 July 2018

The recent ‘desire’ of AIMPLB to establishDarul-Qazasin every district has understandably met with resistance, not just from different political parties, but also from within the Muslim community. It must be underlined though that equating this with something like a Sharia court is clearly a misnomer. Courts have the ‘power’ to adjudicate over issues; theDarul-Qazawill have no such power and as such will be more like arbitration councils.

To be fair to the AIMPLB, such quasi-judicial bodies do exist in other communities, such as the Khap Panchayats in Western Uttar Pradesh and Haryana. In some tribal areas, these bodies even have legal recognition. Thus, the establishment of Darul Qaza may well within be the ambit of law. Demanding for a ban on Darul Qazas while remaining silent on Khaps is clearly hypocritical.

It should also be understood that Darul Qazas have been functioning in this country since at least 1972. If at all, these councils are to be opposed, they should be opposed in their totality, and not just the recent attempt of AIMPLB to extend the Darul Qazas to every part of the country.

Critics have pointed out that if these quasi courts have no authority to enforce their rulings, then what is the point in having them in the first place? That’s a wrong framing of the question. Suppose that they had the power to enforce its ruling, will it mean that it is okay for the country to have Sharia courts? We need to understand that modern legal system has evolved through the ages and is currently built on nearly sacred notions of human rights, equality before the law, etc.

Systems like the Sharia, which claim divine origin, have refused to evolve and are therefore still defined by notions and precepts which are centuries old and are repelling to modern sensibilities. The Sharia law is still governed by legal inequality between men and women with women still being considered the property of men in many ways. The less said about Islam’s position on alternative sexualities, the better it will be. Will we be okay with the provision within the Sharia law that homosexuals should be put to death?

Arguments like the Sharia law is divinely inspired and therefore superior to man-made laws, as is argued by some Islamists, are simply bogus. We must concede that it is the secular law which is far ahead of any divine law simply because it has the capacity to evolve and change.

Enforcing rules need not be done only through legal means. There is something called societal pressure which creates norms and values in any society and they normally acquire the force of law over a period of time. Since most of these norms are derived from religion, those specialising in religious affairs normally acquire the status of keepers of norms and values. Thus it does not help to debate whether theDarul Qazaswill have legal sanctity or not. If they continue to operate, they will eventually have the power to enforce their rulings through various methods like censoring, social boycotts, etc.

What the AIMPLB is trying to do is precisely this: it is trying to create a counter-hegemonic narrative which is largely in opposition to the modern secular logic of the Indian jurisprudence. Through theseDarul Qazas, it wants Muslims to rely only on the religious law and they (the AIMPLB) become the master interpreters of this law. We must also understand that this move comes in the backdrop of the Supreme Court abrogating the practice of instant triple Talaq which gave Muslim men unbridled control over their women.

Moreover, there are a bunch of petitions pending in the Supreme Court through which Muslim women are trying to outlaw the pernicious practice ofNikah Halalaand even challenging polygamy. The AIMPLB knows fully well that it has a weak case in the courts. Their defence of instant triple Talaq was ridiculous to say the least and their argument that Sharia is a divine law and hence cannot be changed in increasingly being seen as illogical. Since they cannot safeguard their interests through the secular courts, they have resorted to creating and sustaining a parallel eco-system in which they will be custodians of Islamic law. Without being alarming, one can almost sense that they want to continue the practice of tripleTalaq, Nikah Halala, etc. through the back door and subvert the Supreme Court ruling on the matter.

This will only lead to the gradual withdrawal of the Muslims from the annals of the state and will lead them into a world of their own; a terrifying idea given the need for Muslims to be integrating into the very crevices of the state for their own survival as a minority. But then, the AIMPLB will be very pleased with such an outcome as ultimately they want Muslims to intellectually, socially, culturally and emotionally secede from the nation.

It is therefore in the interests of Muslims to distance themselves from the fissiparous politics played by the AIMPLB and make it loud and clear that despite the hardships, they would chose the laws of the secular state overDarul Qazas. The opposition to the AIMPLB should start with questioning their very right to represent Indian Muslims. Are they an elected body? If not, then who gave them the right to abrogate to themselves to become the representative voice of Indian Muslims? Do they adequately represent the diversity of Indian Muslims? How many Shias and women do they have in their boards? Or are we just to believe that a few Sunni Maulanas can sit in judgment over the fate of entire Muslim community? It is time that this rump called AIMPLB must itself be abrogated. And Muslims themselves must takethe lead in doing so.